that his awarding of millions of dollars
in attorney fees to a friend without demanding the affidavits required by
law constituted removable

misconduct.

The court said in a unanimous per curiam
opinion that in rubber-stamping,with no
oversight, some $8.5 million in estate commissions to attorneyLouis R. Rosenthal, Feinberg "demonstrate[d] a
shocking disregard forthe very law that
imbued him with judicial authority." It rejected withapparent disdain Feinberg's defense that he had neglected to
read theSurrogate's Court Procedure Act
(SCPA) and was simply ignorant ofhis
judicial responsibilities.

"Petitioner disregarded the clear
statutory mandates of his office

repeatedly over the course of more than
five years and 475 proceedings, educating himself on the SCPA
requirements only in response to a

on Judicial Conduct, which has
increasingly invoked its power to punish

judges for legal error and professional
incompetence. There was never an allegation that Feinberg in any way
personally benefited from his conduct -- only that he had chronically ignored legal
requirements in approvingmillions of
dollars in commission for a close personal and political
friend.

A key question was whether the commission
overstepped its bounds in

pursuing a judge for legal errors.
Wednesday, the court said it did not,

with a key finding that legal error and
misconduct are "not necessarily

mutually exclusive." The decision
seemingly gives the commission

license to continue its pursuit of judges
whose incompetence or legal

neglect crosses the line into judicial
misconduct.

Matter of Feinberg v. New York State
Commission on Judicial Conduct,125, is
rooted in a newspaper expose.

The commission launched its inquiry,
after the New York Daily News

reported on Feinberg's awarding of
millions of dollars in commissions to Rosenthal, a law school friend and
political contributor whom the judge

had appointed counsel to the public
administrator.

The commission found that Feinberg
appointed a marginally qualified

friend to a lucrative post, signing off
on about $8.5 million in

commissions without ever requesting the
mandatory affidavit of legal

services and virtually always awarding 8
percent of the estate. That is

insinuating that he directed a windfall
profit to a chum while ignoring his

judicial oversight
responsibilities.

SURROGATE LAWS
SKIRTED

Feinberg admitted he had failed to
require affidavits as mandated under

the Surrogate's Court Procedure Act and,
once his neglect was

discovered, apologized
profusely.

The surrogate claimed he was oblivious of
the provision and noted that

he ordered affidavits, prospectively and
retroactively, as soon as the

Daily News probe made him aware of
the law. Additionally, Feinberg

pointed out that his manner of awarding
fees was consistent with

longtime Brooklyn
practice.

Court records show that the firm that
preceded Rosenthal as counsel to

the public administrator, Hesterberg
& Keller of Brooklyn, also

requested the excess fee via Post-It
notes and also had that request

routinely honored by then-Surrogate
Bernard M. Bloom. However,

Bloom required affidavits of legal
service, abiding by the Surrogate's

Act and making the transactions with
Hesterberg & Keller more

transparent.

At the Court of Appeals, the case
distilled to whether Feinberg

committed misconduct and, if so, the
gravity of the offense. The court

found grave misconduct, rejecting every
defense advanced by the

surrogate.

It criticized Feinberg for neglecting to
read the law, for funneling

lucrative commissions to a friend and for
neglecting to give individualized attention to the intestate matters over
which, as the elected Kings County surrogate, he had assumed
responsibility by looking out for the interestsof potential heirs and, where there were no heirs, the
state.

STRONG 'TAINT OF
FAVORITISM'

The court also rejected Feinberg's
argument that the Commission on

Judicial Conduct had grossly inflated the
total of the alleged

overpayments, observing in a footnote
that the commission's

calculation of an 8 percent award in most
cases was on target. By that calculation, Rosenthal was overpaid by
roughly $2 million.

"Petitioner's failure was made all the
more egregious by his appointment,

without considering other candidates, of
a close personal friend and

political supporter," the court said.
"While appointment of a friend does

not itself convey an appearance of
impropriety, when, as here, that

appointment is coupled with the
unsubstantiated award of several million

dollars in fees from estates that, by
definition, lack adversarial parties to challenge the practice, the taint
of favoritism is strong."

This case, the court said, "reflects not
mere lapses or errors in judgment

but a wholesale failure of petitioner's
duty, reflecting an indifference if notcynicism toward his judicial
office."

It added that Feinberg's "failure to
abide by the legal requirements of his

office, in a manner that conveyed the
appearance of impropriety and

favoritism, debased his office and eroded
public confidence in the

integrity of the
judiciary."

Attorney General Eliot Spitzer's office
has offered to settle any dispute

with Rosenthal for $729,800, an amount
the office has described as a

"subset" of the
overpayment.

The state Surrogate's Association
supported Feinberg as amicus curiae.

It insisted the commission has no
business second-guessing the

discretionary actions of a judge. But in
Wednesday's opinion, the court

said a judge does not have discretion to
ignore the law.

Commission Administrator and Counsel
Robert H. Tembeckjian

prosecuted the case. Henry M. Greenberg
of Greenberg Traurig in

Albany, N.Y., argued for
Feinberg.

Tembeckjian said that while "it is never
pleasant or easy to remove a

judge," it is occasionally
necessary.

"I am gratified the court forcefully
affirmed a fundamental principle in thiscase -- that public confidence in the integrity and competence
of the

judiciary is essential to the rule of
law," Tembeckjian said. "One who

routinely violates that principle is
unworthy of being a judge."

Greenberg declined
comment.

CHOOSING A
SUCCESSOR

By deciding the case Wednesday, the court
ensured that Feinberg's

successor will be chosen through a Sept.
13 primary. A ruling after

July 7 would have permitted Brooklyn
Democratic leaders to choose the successor.

Three candidates had their hats in the
ring Wednesday for the Democratic nomination to fill the vacancy:
Brooklyn Supreme Court Justices Diana A. Johnson and Lawrence S. Knipel
and Civil Court Judge Margarita LopezTorres.

Aides to all three judges confirmed that
they will begin the process of

gathering the 4,000 petition signatures
needed to qualify for the primary.

The trio faces a truncated petitioning
period because primary candidates

for other offices were legally permitted
to begin circulating petitions on

June 7.

Meanwhile, Brooklyn voters for the first
time this November will choose

two surrogates. Last week, the New York
Legislature created a second surrogate's position in the borough as a
part of a package of 21 new

judgeships enacted in the closing hours
of its session.

The new law, if signed as expected by
Gov. George E. Pataki, will

become effective Aug. 1, which is too
late in the political calendar for

a primary. Instead, the leadership of the
Brooklyn Democratic Party

will select the
candidate.

The party is expected to select Brooklyn
Assemblyman Joseph R. Lentol,who heads the
Assembly's Codes Committee, according to
sources.